How appealing —

YouTube finally offers a meaningful ContentID appeal process

But takedown policies are still favorable to large copyright holders.

YouTube has taken an important step to protect its users against frivolous takedowns, instituting a formal process for appealing blocked videos under the ContentID program. In a Wednesday blog post, the Google-owned video site announced that copyright holders that wish to keep a video offline after the uploader disputes a ContentID claim will (in most cases) be required to file a formal takedown notice under the Digital Millennium Copyright Act. That matters because there are legal penalties (albeit relatively modest ones) for filing bogus DMCA takedown requests.

We've covered a number of incidents where copyright holders have gotten YouTube to take down videos that didn't belong to them. In one case, a video related to the Curiosity lander was taken down because it used public-domain footage from NASA that had also been used by commercial news outlets. In another case, videos featuring President Barack Obama singing a few words from Al Green's "Let's Stay Together" were taken offline by the firm that owned the rights to the music, even though the videos appeared to fall squarely within fair use.

Some media outlets have described these as takedown requests under the Digital Millennium Copyright Act, but most of them appear to have been taken down using the separate ContentID system. (YouTube has repeatedly refused to tell us, at least on the record, which takedowns were due to ContentID and which were DMCA requests.) Under ContentID, copyright holders upload samples of their copyrighted works and YouTube's software automatically blocks "matching" videos.

Under the old ContentID system, disputes would be sent back to the copyright holder that filed a complaint in the first place. As YouTube now acknowledges, "prior to today, if a content owner rejected that dispute, the user was left with no recourse for certain types of Content ID claims."

But now YouTube has established a new, less Kafkaesque process: if an "eligible" user disputes a ContentID claim, the "content owner" will have only two options. It can release the claim, allowing the video to go back up. Or it can file a formal takedown notice under the DMCA.

That matters because the DMCA has a well-defined process for resolving content disputes. The uploader can file a counter-notice to get his content restored. Then if the copyright holder still feels the video is infringing, he must file an actual lawsuit in federal court.

Who is "eligible" for the new appeals process? "Uploaders in good copyright standing may be able to appeal up to three disputed Content ID matches that were reviewed and rejected at a time." YouTube says that "additional eligibility restrictions may apply, including the date of dispute and other factors."

This is clearly an improvement, but it should be noted that the vanilla DMCA process still leaves a lot to be desired. Under the DMCA, YouTube is supposed to wait 10 days to restore a user's video after receiving a counter-notification. Moreover, YouTube has a "three strikes" system, which means that each time anyone submits a DMCA takedown request, its owner gets a "strike" on his account. YouTube says that "if you receive three copyright strikes, your account and all videos uploaded to that account will be removed."

That approach still seems to give major content companies too much power, since users risk losing their access to YouTube if they dispute too many bogus takedowns. But at least most users now have a way to get their videos out of ContentID purgatory.

Update: Patrick McKay, a recent law school graduate who maintains a website that documents problems with the ContentID system, said he was "cautiously optimistic" about the changes.

"It looks like they have finally made the exact change I and other critics of the Content ID dispute process have been calling for them to make," he said. "I only regret that it took YouTube several years to realize that giving copyright claimants the ability to reinstate their own claims was a problem."

We need to keep pushing until there are actually strong punishments for bogus content-takedowns, and that any bogus takedowns are NOT counted towards that 3-strikes rule. Though, to be honest, that 3-strikes rule should be abolished completely. The removal of someone's account, and all the content he placed up, must be set to a VERY VERY high bar.... such as only being applied if the user lost on multiple, separate, independent COURT ORDERED content removals.

So they make a takedown request, and my video goes down immediately, bogus request or not. Only when the requester says "oops" does my video go back up? So I'm still penalized on a bogus request.

This doesn't fix the problem of timely videos such as NASA's that got taken down. Waiting until the ContentID requester says "oops" is too late.

That's not how it works. Content flagged by ContentID is removed without any involvement from the copyright holder. If the uploader believes the content has erroneously flagged, he can appeal the removal; the content goes back up and his request get forwarding to the copyright holder. The copyright holder can then reject the appeal, causing the content to go down again. As of today, the uploader can appeal the rejection, restoring the content and forcing the copyright holder to file a formal DMCA takedown request. Even if the holder files the DMCA request, the uploader can file a counter-claim and the owner is forced to sue and get court order to removed it again.

This isn't optimism or pessimism. Who cares? The system was broken and Google has finally taken steps to address it in a way that is clearly better than the current system. Whether the system should exist at all is a completely different matter.

craigc wrote:

So I'm still penalized on a bogus request.

That's how DMCA has always worked and that is why DMCA has penalties for bogus requests, but the penalties are not sufficient to prevent abuse and they have rarely (never?) been imposed.

dacjames wrote:

Content flagged by ContentID is removed without any involvement from the copyright holder.

AFAIK, generally content flagged by ContentID stays up but gets mandatory ads and the cut goes to the owner instead of the uploader. Currently if the user appeals, nothing happens unless the owner says "my mistake", which probably has happened, but I've never heard/read about it.

This is great to hear but I have a different problem maybe someone can help me with.

I run the website for Vern, reviewer of the films of cinema and author of Segalogy (http://outlawvern.com) and I have been updating his reviews to include posters and trailers, as I want to also collect this stuff and more for my open source movie database project coming soon (http://badassdb.com). I have gone through over 1,000 movies so far and have had to create nearly 100 trailers for YouTube on my own. Normall it's a case of the wrong aspect ratio but sometimes I have to seek other sources including my own collection. I have no ads on any of my uploads as I fully admit on my page that these are trailers for movies owned by other people, I just want the public that may be interested in renting or buying the movies to have the same type of info anyone at the time of release would have had. I dutifully acknowledge all claims (including a bizarre one for Hard Boiled by a music company that restricts the trailer in Germany for some reason) but I have one that is blocked worldwide, Steve McQueen's The Hunter from the early '80s. I have no idea why it's blocked, it's the only good version of a tailer for that movie anywhere on YouTube.

So my question is this: is there a way to contact the copyright holder? I'd love a simple way to say "hey, I know this is yours, if you want to host it on your account great, I just want the embed for anyone thinking about buying it". There is sometimes a link for the holder's page, but not always.

YouTube has a "three strikes" system, which means that each time anyone submits a DMCA takedown request, its owner gets a "strike" on his account. YouTube says that "if you receive three copyright strikes, your account and all videos uploaded to that account will be removed."

Does that mean that the copyright holder can simply issue a DMCA request three times, and then you and your videos will be wiped off the face of Youtube?

YouTube has a "three strikes" system, which means that each time anyone submits a DMCA takedown request, its owner gets a "strike" on his account. YouTube says that "if you receive three copyright strikes, your account and all videos uploaded to that account will be removed."

Does that mean that the copyright holder can simply issue a DMCA request three times, and then you and your videos will be wiped off the face of Youtube?

Apparently! Maybe you have to get takedowns from 3 different people. The page explaining the policy is a little vague.

As regards the strikes for DMCA notices on an account, can I correctly assume that requests dropped on appeal (or resulting lawsuits failing) are removed from the strikes? As another mentions, all that would have to happen is to send three bogus requests to nuke a user.

Say I get a bogus request against me, I appeal, they decline to file an actual lawsuit, ergo the DMCA request effectively ceases to be, does that strike still stay on my account? Logically, since I prevailed, it should be removed. Is that the case?

A small group of people deep in the Google caves made the decision to not go all the way with their changes to the system and still give too much power to content owners.

I wonder how they came to that decision..

Caution, most likely. The MPAA and RIAA are not lobbies you want to piss off more than necessary to get what you need. By taking this small step they mostly just close a loop-hole that's been actively abused, namely the ability to completely bypass the DMCA process and take control indefinitely, without recourse, of any content they wish. It's a fair first step to force them to respond to a challenge with a proper DMCA request, and if the user then contests that, the user effectively wins (Jamie Thomas is STILL going through the court system; one of only two independent -- e.g. non-commercial -- individuals in the US to be convicted). These companies know better now than to try to take individuals to court over copyright infringement; the PR is far too negative, and the chances of success are marginal, at best.

Also, there is being careful to comply with the requirements for safe-harbor. If they push too far at once they might risk those same lobbies accusing them of failing to live up to the safe-harbor requirements. It'd be bullshit, especially since they already go far above and beyond the DMCA requirements, but it would still be bad press and the expense of prepping for and possibly engaging in litigation.

But now YouTube has established a new, less Kafkaesque process: if an "eligible" user disputes a ContentID claim, the "content owner" will have only two options. It can release the claim, allowing the video to go back up. Or it can file a formal takedown notice under the DMCA.

You're missing the standard lawyer third option: for the "content owner" to do nothing. I presume the clip stays down in this case. For something like a political campaign YouTube video staying down for even 48 hours can be a serious blow.

The idea of user eligibility and appeal-count limits seem like reasonable precautions, otherwise it'd be really, really easy for malicious uploaders to game this system.

But I don't see any protection against abusive claimants, no provision that any record of falsely claiming rights would cause a company any trouble. Where's so much as tracking on the rate at which a company makes improper ContentID claims, let alone limits? Where's the throttling of ContentID errors, say by allowing a company some rate of abandoned claims (where the uploader challenges and the claimant doesn't respond) before ContentID claims are capped at some rate, where's the provision allowing a company some small number of DMCA claims rejected in court before they lose ContentID privileges entirely?

I wish rival sites, like the excellent Vimeo, would make their sites more accessible to mobile and non PC devices if they were more accessible, perhaps people wouldn't feel so frustrated by Youtube's many follies. Instead of bemoaning Youtube, users could just take their interest elsewhere?

The appeal process is no different. I got one copyright notice on a video that fell under fair use, and so I disputed the claim with an explanation. The response the next day was the other party disagreed with me. When I click appeal again I am told:

"You will be required to provide your contact information to the claimant. An appeal will result in either:

the release of a claim on your video OR a legal copyright notification from the claimant. In this event your video will be taken down and you will receive a copyright strike on your account. If you have received additional copyright strikes, this may suspend your YouTube account"

In other words the other party doesn't have to prove it's claims. It only has to make an assertion. If they will so quickly disagree without an explanation as to WHY they think I am in violation why would I think a second time would be any different? The outcome is "per-determined." and no proof would be required.

In the case of "Fair Use" there isn't much I can legally do to fight them, but if they went after one of my gardening videos which is for profit I will sue Google and the offending company together.

The appeal process is no different. I got one copyright notice on a video that fell under fair use, and so I disputed the claim with an explanation. The response the next day was the other party disagreed with me. When I click appeal again I am told:

"You will be required to provide your contact information to the claimant. An appeal will result in either:

the release of a claim on your video OR a legal copyright notification from the claimant. In this event your video will be taken down and you will receive a copyright strike on your account. If you have received additional copyright strikes, this may suspend your YouTube account"

In other words the other party doesn't have to prove it's claims. It only has to make an assertion. If they will so quickly disagree without an explanation as to WHY they think I am in violation why would I think a second time would be any different? The outcome is "per-determined." and no proof would be required.

In the case of "Fair Use" there isn't much I can legally do to fight them, but if they went after one of my gardening videos which is for profit I will sue Google and the offending company together.

Actually that's exactly the point of the change: they are now required to send a formal DMCA notice, rather than simply saying "nope, we own it now, thanks." Had you read the article you would know this. By requiring that they either drop the claim or engage in the formal DMCA take-down process, it forces them into a corner. If you challenge a DMCA notice they DO have to prove their side, because if you formally challenge a DMCA takedown notice the claimant is required to either drop the claim or take it to court.